Why should we worry about orphan works? A good summary of the importance of this issue is provided by former US Register of Copyrights, MaryBeth Peters:

The problem is pervasive. Our study recounts the challenges that
publishers, film makers, museums, libraries, universities, and private
citizens, among others, have had in managing risk and liability when a
copyright owner cannot be identified or located. In testimony before
the Senate, a filmmaker spoke of the historically significant images
that are removed from documentaries and never reach the public because
ownership cannot be determined. In testimony before the House, the
U.S. Holocaust Museum spoke of the millions of pages of archival
documents, photographs, oral histories, and reels of film that it and
other museums cannot publish or digitize.

The problem has been created, in part, by the changing provisions of copyright. Copyright used to be dependent upon rightsholders’ obligation to register their works; if works weren’t timely registered or re-registered, they fell into the public domain. Now protection is automatic, with no need for registration, and the term of copyright has been extended far beyond authors’ lifetimes. The unintended result is a huge pool of orphan works–whose rights no one is managing, and whose content no one can use. (How huge? It’s estimated that in Europe alone, over 3 million books–13% of all in-copyright books–are orphans.)

Many people feel that legislation is the answer–both to create a legal definition of orphan works and to reduce the liability of those who want to use them. But the most recent legislation proposed in the USA failed to pass, and the EU’s proposed directive on orphan works is still being debated.

Now France has taken action–and its new law, passed last week, is a jaw-dropper. It empowers the Bibliothèque Nationale de France to create “a freely accessible online database” of all works–not just orphans–published in France before 2001 that are currently out of print. Once a book has been listed in the database for more than six months, the right to “authorize its reproduction and display in digital form” transfers to a collective management organization, which thereafter has the power to exploit those rights, including selling the works and distributing a portion of the proceeds to the rightsholders. To be removed from the database, rightsholders must opt out in writing before the six-month waiting period expires. If a rightsholder misses the six-month deadline, s/he can only demand removal by proving that s/he is the sole holder of digital rights (good luck with that, if you have a pre-digital contract) or by arguing that the work’s “reproduction or display [is] prejudicial to his honour or reputation.”

If you stalled out in the middle of that long paragraph, here’s the short version: any book published in France–which would include translated foreign-language books–that went out of print in France–not necessarily elsewhere–before 2001, can be scanned into a database. If authors–who may or may not be notified of their inclusion–do not opt out within six months, they lose control of the digital display and sale of their work.

This is a rights transfer on a massive scale that makes the Google Book Settlement look benign. By including any out of print book–not just those whose rightsholders can’t be located–it goes far beyond the issue of orphan works. By forcing authors to opt out in order to regain control of their work, it turns copyright law on its head. The problem of orphan works urgently needs solution–but not via measures like this.

For my more wonky readers: what I’ve noted above is just the start. There’s much more to object to in the new law–see this long blog post from Gillian Spraggs of Action on Authors’ Rights for a detailed summary.

One interesting apparent feature of the law: the opportunity it potentially affords publishers to get around the difficulties of claiming the digital rights to books with pre-digital contracts. For any work in the database whose author doesn’t opt out within the six-month window, the collective management organization is empowered to offer digital rights to the publisher that holds the print rights. As Gillian Spraggs comments, “what this legislation has achieved is to hand the publisher of the print
edition the digital rights to any out-of-print twentieth-century French
book that they think might make them money in a digital edition.”

And–oh yes–if authors who didn’t realize their works were included in the database discover this only after a publishing deal has been brokered, they are out of luck. Spraggs writes, “If an author misses the six months’ window to reclaim a book, then even
if he/she subsequently proves ownership of the rights (and that may well
be a difficult process), then it will most likely still remain subject
to the terms of a contract negotiated by the collecting society. That
contract (if exclusive) will then become non-exclusive, but it will
still last for up to five years.”

4 Responses

A couple of important (to authors) things I do not see: when, precisely, does (did) the six month opt-out period start, and where are the instructions for opting out? Google made the process as rights-owner unfriendly as possible.

The use of “estimates” for orphan works bothers me a lot because of the conflict of interest between those who want to use works without compensating rights-holders and the rights-holders. As the Authors Guild demonstrated, many potential users will not exert even the slightest effort to determine whether copyright is still in force. (Google certainly made no effort in that direction: they digitized books of mine that were in print and in the stores.) There’s potential profit to be made; it’s easy to inflate an estimate to argue for such draconian legislation as this in France (and the earlier arguments in the US.) And the conflation of “out of print” with “out of copyright” simply must not stand. Authors cannot control whether a book goes out of print for a commercial publisher; they must be allowed to control its subsequent publication and distribution (and of course, the original publisher may bring the book back into print. Brief “out of print” periods should not risk the author’s rights.)

A more sensible approach (not that any government or corporation wants to take it) would have been to use the date at which copyright became automatically renewable, and make *that* the landmark date for calculating what is in and what it out of copyright. All work after that date is presumed to be copyrighted until its creator’s death-plus-70. All work before that date requires its creator or other rights-holder to opt out. In-print and out-of-print are irrelevant.

Papers and images of real historical value (e.g. first half of 20th c. and before) cannot fall under the “creator’s lifetime plus 70 years” of current copyright law and thus may be true orphans if the rights holder has died (or failed to renew copyright, then a requirement.) And true creative work–fiction and poetry, in our case–should never be subject to rights-grabbing in the name of salvaging “orphan” works. You can argue that the one surviving photograph of historical value has sufficient cultural importance to be worth using even though its photographer’s grandchildren might have a right (though not if it was taken before the time the copyright law changed.) But to let a government agency profit from someone’s novel by selling the movie rights to Disney while the author goes hungry? No. And to do that to writers not even in one’s own country? Double no.

when, precisely, does (did) the six month opt-out period start, and where are the instructions for opting out?

According to the legislation, it will start running at the point when a book is entered in a database to be set up and operated by the Bibliothèque nationale de France (National Library of France). [See Article L. 134–3]

‘Six months after the time when the book is entered in the database … the right to authorize its reproduction and display in digital form is to be exercised by a collecting and licensing society …’

French writers have discovered this very late, but some of them try to prevent the law to be proclaimed. We can sign a petition, and all foreign authors can sign it too:http://www.petitionpublique.fr/?pi=P2012N21047
You can add any comment to say you refuse that the translations of your books to be scanned without a contract!

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